EX PARTE WISCONSIN PHYSICIANS SERV. INS.

• Decision Date: 04 May 2001
• Citation: 800 So.2d 588
• Parties: Ex parte WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION et al. and Ex parte Conseco Life Insurance Company. (In re Steven R. Long and Dee Ann Long v. Gary Blaine Cooper et al.) Ex parte Wisconsin Physicians Service Insurance Corporation et al. In re Ora Ruffin v. Congress Life Insurance Company et al.
• Court: Alabama Supreme Court

800 So.2d 588

Ex parte WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION et al. and

Ex parte Conseco Life Insurance Company.

(In re Steven R. Long and Dee Ann Long v. Gary Blaine Cooper et al.)

Ex parte Wisconsin Physicians Service Insurance Corporation et al.

In re Ora Ruffin v. Congress Life Insurance Company et al.

1000546, 1056.

Supreme Court of Alabama.

May 4, 2001.

Forrest S. Latta and John P. Kavanagh, Jr., of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for petitioners Congress Life Insurance Company and A.B.I. Administrative Services Corporation d/b/a Corporate Benefits Services of America, Inc.

Philip J. Carroll III and David Condon of Bradley, Arant, Rose & White, L.L.P., Birmingham, for petitioner Wisconsin Physicians Service Insurance Corporation.

Gary P. Bolus, Gary L. Howard, and D. Brian O'Dell of Burr & Forman, L.L.P., Birmingham, for petitioner Conseco Life Insurance Company.

John T. Crowder, Jr., Michael A. Worel, and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and William L. Utsey and John J. Utsey of Utsey & Utsey, Butler, for respondents Steven R. Long, Dee Ann Long, and Judge Harold L. Crow.

David M. Cowan of Mann & Cowan, P.C., Birmingham; and William L. Utsey of Utsey & Utsey, Butler, for respondent Ora Ruffin and Judge Harold L. Crow.

Joana S. Ellis, of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association.

LYONS, Justice.

These three petitions for the writ of mandamus relate to two cases pending in the Choctaw Circuit Court. They involve a common issue. Steven Long and Dee Ann Long are the plaintiffs in one of the pending cases, while Ora Ruffin is the plaintiff in the other case. The two actions stem from various allegations of fraud against various defendants. All three petitions ask this Court to hold that the trial court abused its discretion in granting motions to disallow the videotaping of depositions of the Longs, Ruffin, and Ruffin's son. We hold, based on the record before us, that it was not an abuse of discretion for the trial court to prohibit the videotaping of the depositions. We therefore deny the petitions.

I. Standard of Review and Procedural History

This Court has well-established criteria for issuing a writ of mandamus:

"The writ of mandamus is an extraordinary remedy, and one petitioning for that writ must show `(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So.2d 889, 890 (Ala.1991); see also, Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977); Ex parte Slade, 382 So.2d 1127 (Ala.1980); Ex parte Houston County, 435 So.2d 1268 (Ala.1983); Ex parte Johnson, 638 So.2d 772 (Ala.1994). `Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion.' State v. Cannon, 369 So.2d 32, 33 (Ala.1979)."

Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999). "A petition for a writ of mandamus is the appropriate vehicle for challenging a trial court's ruling on a discovery motion." Ex parte Steiner, 730 So.2d 599, 600 (Ala.1998) (citing Ex parte Life Ins. Co. of Georgia, 663 So.2d 929 (Ala.1995)). See also Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358 (Ala.1993).

Although the precise procedural history of the two pending actions differs slightly, they both are in a similar posture. The defendants initially obtained an order permitting them to record the depositions by videotape, in addition to stenographic means. After having first denied a reconsideration of that order, the trial court subsequently granted the plaintiffs' motions to disallow the videotaping of the depositions.

II. Analysis

We must begin our analysis with the pertinent rule. Ala. R. Civ. P. 30(b)(4) states that "[t]he parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means." The petitioners argue that a literal reading of Rule 30(b)(4) requires a joint stipulation or court order only if stenographic means are to be replaced entirely by some other means of recording the deposition. In support of this proposition, two of the petitioners cite Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647 (M.D.N.C. 1987), wherein a United States district court held that recording a deposition by videotape in addition to stenographic means did not come within the ambit of Fed.R.Civ.P. 30(b)(4).¹ We agree with that construction of the Federal counterpart to our rule. But, even though we accept that as the appropriate interpretation of the Federal rule, containing language similar to that in Ala. R. Civ. P. 30(b)(4), we are not required to apply that interpretation to our own rule, i.e., we need not reach the result reached in Rice's Toyota World where the trial court permitted videotaped depositions. This Court is not bound by the holding in Rice's Toyota World,² but if it were, we would nonetheless note the critical distinction between the posture of the action dealt with in Rice's Toyota World and the posture of the actions pending in the Choctaw Circuit Court. Here, in order to secure the writs they seek, the petitioners are required to demonstrate that they have a clear legal right and that the trial court has abused its discretion. The party seeking videotaped depositions in Rice's Toyota World invoked the trial court's discretion in the first instance. The trial court in Rice's Toyota World correctly noted that "the issue of whether to permit plaintiff to video record the deposition is not governed by Rule 30(b)(4) as much as by the Court's general authority to regulate the deposition process." Id. at 650.

Ala. R. Civ. P. 30(b)(4) was drafted so as to permit economical alternatives to stenographic recording. Its provision for obtaining consent of all parties or approval of the court was designed to protect an objecting party from prejudice that could occur if some means of recording other than stenographic recording was used. A tape recording, whether audio or video, conducted without a contemporaneous stenographic record lacks the superintendence of an individual responsible for making a contemporaneous written record. In the absence of a stenographer, therefore, inaudible or incomprehensible statements are not as likely to be the subject of an immediate request for clarification and, likewise, without a stenographer episodes of two parties talking at the same time are not likely to be policed. A party serving a notice of deposition stating that a video recording will be made in addition to a recording by stenographic means is entitled to conduct the deposition pursuant to the terms stated in the notice unless the opposing party successfully moves to quash the notice or to obtain a protective order.

Against this backdrop, we return to the matters presented to the trial court in support of, and in opposition to, the use of videotaped depositions in these proceedings. The plaintiffs' initial argument in opposition to the videotaping of the depositions relied solely on the ground that the plaintiffs would testify in person at trial and that the videotaping would create an unnecessary expense. No transcript was made of the hearing that preceded the trial court's conclusory order disallowing videotaped depositions. Defense counsel argue that the plaintiffs' attorneys have stated that they intend to videotape the depositions of defense witnesses. The plaintiffs' counsel states that no such action has been initiated.

The defendants, in their motion to vacate the order disallowing the videotaping of the plaintiffs' depositions, argued that in a fraud case, where credibility of the witnesses is critical, a video recording of the plaintiffs reaction to questions being asked, possibly for the first time, would aid the fact-finder in determining credibility. The defendant Conseco Life Insurance Company contended that a videotaped deposition would enable its representatives who could not be present at the deposition to evaluate the witnesses' credibility and the merit of the cases. The defendants responded to the plaintiffs' financial-hardship argument by noting that the only expense created for the plaintiffs by the videotaping would be the cost to purchase a copy of the videotape from the videographer. The defendants offered no evidence concerning the charge for a copy of the videotape or concerning the plaintiffs' financial condition other than to say that they had a claim for substantial money damages. The defendants did not offer to furnish a copy of the videotape without cost to the plaintiffs.

The plaintiffs responded to these arguments by first noting that no Alabama case has specifically addressed the issue of videotaping a deposition when an opposing party objects. The plaintiffs then relied upon Perry v. Mohawk Rubber Co., 63 F.R.D. 603 (D.S.C.1974), wherein the court held that whether to allow video recording of depositions, in addition to stenographic recording, was within the discretion of the trial court, and that videotaping depositions was not available as a matter of right. The plaintiffs distinguished In re Daniels, 69 F.R.D. 579 (N.D.Ga.1975), on the ground that videotaping in that case was appropriate in view of the witness's unavailability at trial. The plaintiffs then represented that they would be available for live testimony at the trial. The plaintiffs countered Conseco's argument that its absent representatives needed to be able to evaluate the deposition, by observing that a representative of Conseco, as well as its attorney, would surely attend the deposition and those persons could report to other Conseco...